If the World Trade Organization (WTO) disappeared tomorrow,
many people in other nations would feel a bit of relief. But nothing fundamental
would change in the USA. This is because corporations already have the special
privilege (which lawyers call their "right") to make basic governing
decisions. WTO or no WTO, corporations are protected by our constitution and our
Supreme Court, and therefore by the police, army, navy, air force, CIA...

In late November, thousands from around the world joined to
protest WTO maneuvers in Seattle. Outside the U.S., WTO decrees will inflict
great harms upon human life and biological systems. We have a responsibility to
support efforts by activists from other lands to neutralize and abolish the WTO.

But after Seattle, we in the USA have a formidable challenge:
to identify and undo over 200 years of constitutional doctrines and laws
designed to clothe corporate property with the power of government.

One example (among a zillion) of how these doctrines work: a
few years ago a Massachusetts people's movement got a law passed restricting
state officials from buying goods or services from corporations trafficking with
Burmese dictators. Corporate directors did not like this public assault upon
their "rights." But they did not have to summon the WTO into action.
Why? Because men of property in the USA have long relied on the federal courts
as their very own safety net. So they expected federal judges to nullify this
law. And these judges did not disappoint, saying simply that it was beyond the
authority of the Massachusetts people to legislate such matters.

We have a long history of corporations vetoing people's laws
and making their own. And the idea of merchants using some kind of world trade
organization to do this work is nothing new. Towards the end of the 17th
Century, a new class of global merchants —architects of the expanding British
Empire—realized their need "to create or adapt agencies to enforce
British law on the one hand and restrain colonial legislatures on the
other." So they set up a Board of Trade and Plantations to "scrutinize
[the] colonial economy with an eagle eye...[and] recommend... with firm
insistence the annulment of objectionable bills passed by colonial
legislatures."(1)

THE TRIUMPH OF THE WEALTHY

The American Revolution unleashed a great democratic spirit.
This led to struggles between the more-propertied and the less-propertied. In a
number of states, activists were able to qualify more white men to vote,
increase the authority of lower legislative houses, lessen the ability of
creditors to milk their debtors forever and ever, and limit the veto powers of
governors and judges.

This of course is not what the wealthy, landed men who helped
lead the revolution had in mind. They were, after all, a small minority of 20%:
European and Colonial class structures had already defined the majority—women,
slaves, Native peoples, indentured servants and workers in general—as
non-legal persons...indeed as property. So in self-defense, Washington,
Hamilton, Madison and other leaders of this minority wrote and fixed in place a
constitution "to contain the threat of the people rather than to embrace
their participation and their competence."(2) Committed to "preventing
popular liberty from destroying itself" because "the anarchy of the
property-less would give way to despotism,"(3) they made it extremely
difficult for the majority to use the constitution to make basic changes in law
even if and when they should ever win the civil and political rights of persons.

In addition, these Federalist(4) founders defined decisions
about investment, production, labor and technology as private property's
"rights." They believed such decisions were proper matters only for
the wealthy landed gentry and commercial class (the corporate managers of
today). Accordingly, at the 1787 constitutional convention in Philadelphia,
Federalist delegates maneuvered a leap from the Articles of Confederation—which
had kept power and authority in state legislatures—to a totally new
constitution erecting a powerful central government. In the constitution's
commerce clause (article 1, section 8), they forbade majorities, through state
legislatures, from making rules for production, commerce and trade.

And to appointed Supreme Court justices, they gave the
authority of kings.

So when today's corporate managers assemble at a meeting of
the World Trade Organization, it is in this triumphant Federalist tradition that
they deny legislatures representing communities, states, provinces and national
governments the right to make decisions over what shall be produced, where it
will be produced and who shall produce it under what conditions.

THE CONSTITUTION: THE FIRST NAFTA

A decade's experience with the North American Free Trade
Agreement (NAFTA), the proposed Multilateral Agreement on Investment (MAI) and
the World Trade Organization can help us examine our country's camouflaged
histories.

With critics properly identifying the Seattle WTO meeting as
an illegitimate global constitutional convention, we can now recognize the US
constitution as the first NAFTA. Sent to Philadelphia by their states to address
some problems of interstate commerce under the Articles of Confederation, the
(mostly Federalist) delegates pledged themselves to secrecy. Once behind closed
doors, they replaced the Articles with a new plan...and denied the public any
details about their deliberations for 53 years.(5) Their constitution turned a
cooperative venture among sovereign states into a set up where Congress would
decide commerce, an unelected Senate(6) would approve treaties, a Supreme Court
would dictate the law of the land, and an indirectly-elected president(7) would
command a standing army.

There are many similarities in the critiques put forward by
the foes of the 1787 constitution and by foes of today's corporate WTO:

* Ultimate authority to govern should be in the hands of
elected legislators meeting in decidedly public processes, not of appointed
judges;

* Government should promote democracy, community and public
virtue, not special privileges for the few, not a commercial empire based on
accumulation of wealth; property should not translate into privilege and
political power;

* Communities and states should not give up their authority
to distant, absentee rulers ...especially to an appointed Supreme Court or to
tribunals of corporate lawyers and trade bureaucrats;

* The majority must be able to amend bedrock doctrines and
laws without waging a revolution every time;

* Mechanisms must exist to cut out of the body politic all
institutions which improperly seize property and governing authority, or cause
vast harms.

Overpowered and outmaneuvered by
the Federalist founders, critics of the constitution yielded when promised a
Bill of Rights. With spotlights on global production and trade deals revealing
our constitution as the first NAFTA, our Bill of Rights stands exposed as the
first diversionary "side agreement!" This is because, just as the
labor and environmental "side agreements" did not alter NAFTA's basic
undemocratic design, the Bill of Rights did nothing to change the very specific
language of the constitution which empowered the propertied minority to rule. In
addition, the state ratification process—during which the text of the
constitution itself could not be changed—was the continent's first "fast
track" vote.

For two centuries, people—especially those disinherited by
the Federalist founders—have sought to use these first ten amendments to gain
their rights and stop assaults by the wealthy and powerful. But to this day, the
courts have not used the Bill of Rights to protect people from entities defined
as "private"—such as corporations. That is why, for example, workers
on corporate property enjoy no Bill of Rights powers such as freedom of speech
and assembly. Indeed, the Bill of Rights has been used to give even greater
powers to the propertied—as with the Supreme Court's creation and expansion of
corporate "free speech."

What's more, invoking the Bill of Rights frequently requires
appeals to property's safety net—the federal courts. Such appeals legitimate
federal court authority—particularly the Supreme Court's—to nullify the laws
of towns, cities and states (just as we legitimate the whole cockamamie NAFTA
structure by invoking a NAFTA "side agreement" to save a worker or a
tree).

In other words, we empower the Supreme Court (or NAFTA) to
amend the constitution. This is what Supreme Court justices did by ruling that
the slave Dred Scott had no rights a court must respect because he was someone's
property; that states could not control railroad corporations within their
borders; that unions were criminal conspiracies; that the 14th amendment made
the corporation a legal person; that speaking out against war was a crime.

The surface language of the US constitution is about We the
People, our delegated authority, consent of the governed, the blessings of
liberty. But the coercive power of the constitution is directed to limiting
authority of the majority to make the rules for governing this country.

The surface language of the WTO is about the free trade of
goods and services across national borders. But the coercive power of the WTO is
directed to limiting the authority of the majority in every country to govern—that
is, to control their own labor, spend their natural wealth, use their property,
conserve their resources, structure their communities, define their
institutions, choose their technologies. Backed by the military power of
governments controlled by men of property (especially by the United States), the
WTO is about enabling a few to rule over multitudes.

Let us all help get the WTO off the backs of other countries.
But after Seattle, we'd best start changing the rules which the propertied
minority put into our constitution two hundred years ago. Growing numbers of
people have been exploring this challenge, but a definitive blueprint is yet to
emerge. So there is great need for creative people from all walks of life to
help frame this work.

Our collective task is protecting human rights over property
privileges; empowering local, elected and public authority against private and
distant unilateral decree; nurturing democracy, equal opportunity and the
Earth...as opposed to protecting the wealthy minority's "property
rights" in governing, accumulating and denying others.

This minority uses elections, mayors, governors,
legislatures, regulatory agencies, courts, police, armed forces and the
president to keep the people from assembling to make the rules for investment,
production, work, property and self-governance. We can replace the legal codes,
judicial precedents and corporate culture which enable them to do so.

It is up to We the People—which now includes whole classes
(such as women, African Americans, workers and Native peoples) who the culture,
law and the Federalist founders once defined as property—to define
corporations as public instruments subordinate to the people, and not as private
contracts.(8) Let us break the hold which dead Federalists and Supreme Court
justices have maintained over our lives and this fragile Earth.

****

* Mike Ferner, Dave Henson, Peter Kellman, Ward Morehouse and
Mary Zepernick contributed to this article. From By What Authority, a
publication of the Program on Corporations, Law and Democracy, Vol. 2, No. 1,
Fall 1999.

Endnotes

1. Charles and Mary Beard, The Rise of American
Civilization, volume 1, pp.197-98.

2. Jennifer Nedelsky, Private Property and the Limits of
American Constitutionalism: The Madisonian Framework and Its Legacy,
Chicago: University of Chicago Press, 1994, p. 159.

3. Nedelsky, pp. 27-28.

4. Wealthy planters, land speculators, bondholders and
slaveholders like Washington and Madison who sought a strong central government,
and who organized states to ratify the constitution (written largely by
Madison), were known as "Federalists." Those who opposed them were
labeled "Anti-Federalists." Among the most famous of these were
Patrick Henry, Richard Henry Lee, Mercy Otis Warren.

5. Only after Madison's death were his detailed notes on the
constitutional convention published.

6. The 17th amendment, ratified in 1913, replaced selection
of senators by state legislators with direct election.

7. Electors appointed by each state—comprising the
so-called "electoral college"—technically control selection of the
president.

8. In an 1819 decision (Trustees of Dartmouth College v.
Woodward, 4 Wheaton 518), the Supreme Court decreed that corporate charters were
contracts which legislatures could not change.

This article appeared in New Democracy Newsletter,
January-February 2000.